TEMPORARY IMPORTATION. AFFECTATION OF THE PURPOSE OF THE REGIME. MODIFICATION OF THE FACTS INVESTIGATED AT THE OPENING OF THE SUMMARY AND AT THE COURT OF THE TRIAL.
In Buenos Aires, on the 25th day of the month of April 2003, the Judges of Chamber E, Drs. D. Paula Winkler and Catalina García Vizcaíno (Dr. Krause Murguiondo is excused), met to issue a judgment in the proceedings entitled: INDUSTRIAS METALÚRGICAS PESCARMONA SA s/ appeal, file TFN No. 16.784-A;
Dr. Winkler said:
I.- That on pages 12/17 the signature of the epigraph files, through a representative attorney, an appeal against Resolution No. 168/01 AD SANI, issued by the Head of the San Nicolás Customs Division on 11.9.01/272/02, whose appeal deadlines "he says- were interrupted by Memorandum No. 251/02 AD SANI and its amendment, Resolution No. 24.1.01/12, AD SANI, notified on “53.078,57/970/9,15 (see start writing, pages 1 back). For these, he clarifies, a fine of $972 is applied, equivalent to one time the amount of the taxes that tax the merchandise in alleged infringement, in the terms of art. 861,86 of the CA and one of $970, equivalent to 250% of the customs value of the losses, in accordance with art. 268 of the same regulatory body, in addition to the taxes supposedly owed, plus an additional thirty percent, totaling the sum of $72. It states that the appealed resolution is contradictory with its own grounds, since although it considers that the merchandise is re-exported, it then states that the purpose of granting the benefit has not been fulfilled, the latter based on the fact that there is a difference between the tariff position declared in the classification certificates and the shipping permits and in the temporary import clearance involved. It states that the eventual difference related to the finished and exported products and those that would have been recorded in the DIT was due to the fact that the works carried out abroad are of great magnitude, so the delivery times of the final product can vary frequently. It is for this reason that it "warns that the company complies with industrial improvement in accordance with such requirements. It affirms that the infringement contained in art. 92 of the CA must be interpreted in harmony with the provisions of arts. 15 and XNUMX of said normative body and states that the taxes are not payable either, since it complied with the duty imposed by resolution ME No. XNUMX/XNUMX. It is aggrieved by the imposition of the additional amount provided for in art. XNUMX of the aforementioned resolution, considering that it should be excluded from the basis for calculating the fine and taxes, for which it cites doctrine that would make its right. It considers that the collection of the VAT and the income tax is also not appropriate, since customs is only authorized to collect them and not to claim what it considers to be the payment of a potential credit. It offers evidence and requests that, in due time, a judgment be issued in favor of the appeal filed and reversing in all its parts the appealed resolutions, with costs.
That on pages 26/37 the representative of the prosecution answers the transfer made. After formulating a report on the procedure printed in the summary proceedings, she answers the grievances of the appellant. She states that it is the offender who is responsible for proving the fulfillment of his duties. She refers to the objective nature of the illicit acts as of the species and cites jurisprudence that would make her right and that the demonstration of the innocence must be left to the person who maintains it. The Court states that from an examination of the background it is clear that 1.611 kilos of the temporarily imported merchandise were not re-exported and that the re-exported merchandise was transformed into a tariff item different from that declared in the classification certificates, and that, in addition to the fact that the provisions of resolution no. 479/95 were not complied with, it considers that in this case the plaintiff must have committed the infractions charged against it, and that the customs tax requirement is also in accordance with the law. The Court reserves the right to consider the federal case and requests that a judgment be issued in due course confirming the appealed resolution, with costs.
II.- That at fs. 38 the case is opened for evidence and, once the same has been produced, at fs. 51 the evidentiary period is closed and the proceedings are sent to Chamber E, which passes them for argument at fs. 55. Those of the plaintiff are added at fs. 60/61. The Treasury did not argue. At fs. 63 the proceedings are sent to judgment.
That from the verification of the administrative records SA No. 057/99 it appears that the plaintiff is being charged for having allegedly failed to comply with the temporary import destination regime (v. fs. 252 of the ant. menc., II Corps). At fs. 250 The San Nicolás Customs Registration Section reports that in the temporary import clearance no. 024-2/95 it was declared that hydroelectric turbines from Obra Miranda were to be exported, when in fact the respective certificates presented to the Secretariat of Industry and Commerce show that a set of parts and pieces of container-type port cranes were exported. It is also stated that the documentation for the cancellation was submitted late and that the sum of the partial amounts affected by the Shipping Permits is 73.959,00, differing by 12.611,00 kilos from what was stated in the Dispatch (sic). At fs. 249 the folder of the investigated temporary import office is added, and on fs. 251 a summary is being conducted for the alleged commission of the infringement contemplated in art. 970 of the CA indicating in the motivation of the referred act that the facts investigated are "the cancellation of the DIT No. 024-2/95 outside the term granted (regulated in Res. No. 479/95 Annex III B Pto.8). Consequently, the procedure is as provided in Art. 21 of Res. MEOSP No. 72/92; Res. ANA No. 127/92 and Res. No. 1379/95 (Annex IV D Pto. 3.1.) (sic). At fs. 256/259 the criminal records are added and on pages. 260 The customs value of the merchandise and the total taxes presumably owed are calculated. At fs. 265, the action is reported to the petitioner, which is answered on pages. 268/271 and vta. In this document, the appellant offers as evidence the boarding permits that are listed in Annex I of this presentation, the safekeeping and custody of which corresponds to the customs service (see. fs. 270vta, 271 and 276), it should be clarified that there are copies of said shipping permits on pages. 2/78 and 287, the latter copies appearing in the administrative proceedings as a result of the evidentiary measure ordered by the San Nicolás customs office on pages. 277 of them. At fs. 282/283 contains the administrator's argument on pages. 294/296, through Note No. 079/01, the required documentation crossing is formalized, in which amounts considerably lower than those previously settled are settled with respect to the total taxes to be paid with respect to the merchandise in alleged infringement, its losses and the minimum fine of art. 970 of the CA At fs. 296, in fine obra, handwritten, a statement from the Head of the Registration Section of the San Nicolás customs office stating that the goods were re-exported within the time limits granted in the disp. Current, which is why the legal department requests a clarifying measure, since what was recently reported does not seem to be consistent with the complaint (v. fs. 303/304), measure contested with Note No. 305/01, fs. 305. Finally, at fs. 306/308, opinion No. 59/01 is issued, which recommends issuing a guilty verdict in accordance with the terms of art. 970 of the CA, the interested party must make payment of taxes for losses and, given the situation of the merchandise pending assignment, from a tax point of view, in terms of the treatment to be followed, its nationalization under the General Regime (sic) would be appropriate. At fs. 309/313 Resolution No. 168/01 is issued and on pages. 319 and vta., No. 251/01, which replaces an article of the previous ruling, both appealed by the plaintiff in this case.
III.- That, first of all, it should be noted that, despite the information reported on pages 250 of the summary proceedings, in the sense that there would be a difference between what was declared in the dit and the partial amounts affected to the pe by which the plaintiff attempted to prove the re-exportation of the merchandise of 12.611 kilos, on pages 294/296 the same agent, by Note No. 079/01, reports that the difference is 1611 kilos, so the calculation of the taxes, the minimum fine and the total to be paid for the losses is a considerably lower sum. On pages 296 in fine the same agent reports that the merchandise was re-exported within the terms granted in the disp. current, all of which motivates Note SALT No. 23/01 (pages 301) and No. 56/2001 (pages 303/304), which is answered on pages 305 in the terms of points 1 to 3, despite which the same official ratifies the complaint on pages 250, although he rectifies the complaint in relation to the kilos.
That despite the indicated irregularities in the printed procedure regarding the allegedly detected re-export differences, the consequent calculation of the amount applicable to the fines and the tax and the one definitively taken into account by customs when issuing the appealed resolutions, it is convenient to specify that the facts investigated on the basis of the provisions in the opening of the summary of fs. 251 have been specifically the non-compliance with the obligations inherent to the beneficiary of the Temporary Importation Destinations Regime, that is, the cancellation of DIT No. 024-2/95 outside the term granted (regulated in Res. No. 479/95 Annex III B Pto.8) (see also the view run of fs. 265 and the Seen of Resolution AD SANI DGA No. 168/01).
That, however, the sentence imposed was also because the re-exportation of all the temporarily imported merchandise was carried out with a different tariff position to that declared, having applied for this purpose the figure contemplated in art. 970 of the CA, and because the losses were not justified, so that the infringement provided for in art. 972 CA would be materialized (see motivation of Resolution No. 168/01 of the San Nicolás customs).
IV.- Although the plaintiff is not aggrieved in this respect, nor does she request the annulment of the proceedings (she does refer to contradictions in one of the appealed acts), it should be noted that in this case, as set forth above, there has been a modification of the facts initially considered in the investigation (specifically in the opening of the summary and in the hearing) for the imposition of the sentences. That art. 1102 of the CA literally reads: If after the hearing provided for in art. 1101 the existence of other facts is noted that could constitute another infraction, the measures provided for in art. 1094 will be applied extensively or, where appropriate, ordered and, once they have been fulfilled, the alleged responsible parties will be heard in the same terms as before. If the facts were the same and only the legal framework varies, the proceedings will not be heard. That, although it is true that the consideration of these new facts (the non-re-exportation of part of the merchandise and the non-accreditation of the losses) could have been considered by the customs body as being capable of being classified as the same infringement for the purposes of the hearing, since a sentence was imposed under art. 970 and art. 972 (referring to a formal infringement), in my opinion such a new hearing should have been ordered in order to ensure the legitimate right of defense in court for the taxpayer. This is so, because although both types of infringement are contemplated in the same chapter (the one referring to violations of the suspensive destination regimes) the illegal acts contemplated in one and the other norm are manifestly different, beyond the fact that the illegal act contemplated in art. 972 of the CA is a formal infringement. That, however, given the defense that was available to the appellant in the initial writing, it is appropriate to consider the present one without further ado.
V.- Regarding the losses and the alleged 1611 kg of merchandise not re-exported, it should be noted that from the verification of the copies of the shipping permits appearing on pages 2/78 of the previous administrative documents and in the envelope on pages 287 of the same, the quantities of re-exported merchandise appear to be correctly imputed to DIT No. 024-2/95, officially issued on 14.9.95, quantities which coincide with the 84.959 kg temporarily imported. Although it is true that only some of these shipping permits have evidence of their fulfillment (see, for example, no. 0068-8/97, pages 42, 45 and 47 of the summary), such copies were offered as evidence in its defense by the plaintiff and the customs did not provide the originals during the entire processing of the summary, even relying on such copies for the conviction. Since the duty of safeguarding such documentation corresponds to the customs body, it does not seem reasonable to dispute such documentation, which the Treasury has not done either during the processing of the summary, having limited itself to formulating the liquidation recorded on pages 294/296, with the irregularities to which I referred before, as regards the kilos not re-exported with comparisons between what was declared in the different permits and what was actually re-exported, which is not supported by any of the only copies of the different permits recorded in the case. Thus, the report contained on page 1 of the background information and which was submitted through EA 59 No. 1229/98 must be deemed correct, because while it is true that it is the offender who is responsible for proving his statements, this is precisely what happened in this case with the copies of the shipping permits provided by the plaintiff, and the customs office "which had the duty of safeguarding its documents - had to provide the completed documents that contradicted the appellant's assertions regarding the re-exported quantities, which it did not do. VI. - That in relation to the imputation made to the plaintiff of the illicit act contemplated in art. 970 Since the re-exported merchandise that was transformed has been transformed into something completely different from that declared in the Classification and Typification Certificates, it should be noted that what customs considers to be an infringement is that the DIT involved declared that the temporarily imported merchandise would be destined for a work and country other than the one finally stated in the applications for classification certificates no. 1968 (pages 80/87 of the ant.), no. 7920 (pages 88/118), no. 7122 (pages 119/146) and no. 2949 (pages 147/182).
Regarding these sworn statements, the INTI reports on pages. 46 of the cars that the merchandise in question was inspected by this Agency and in said inspections it was verified that the declared items are part of the equipment to be exported. That MEYOSP Resolution No. 72/92, applicable to the case under consideration, establishes in its article 1 that under the conditions established in this resolution, merchandise intended to receive industrial improvement may be temporarily imported into the country, with the obligation to be exported for consumption in other countries under the resulting new form. In turn, art. 7 establishes that in order to enjoy the benefits of this resolution, the interested party must present the Temporary Import Clearance to the corresponding customs office indicating the type, quality, quantity and technical characteristics of the merchandise to be imported and of the merchandise to be exported accordingly (note that it does not make specific reference to the destination of incorporation of the merchandise, the list of its technical characteristics and, in any case, its connection or assembly with the work to be carried out being sufficient). The art. 16, which refers to the additional 20% duty applicable to cases such as this one, refers for its part to the industrial improvement provided for in article 1, without making any other distinction. That the principle of legal reserve, of constitutional roots, which establishes that no one is obliged to do what the law does not command, nor deprived of what it does not prohibit, protects the right of the beneficiary of the regime not to report more than what is requested, and if he voluntarily does so, it is obvious that this conduct is not subsumed under any type of infraction, when "as in the species - with this report some change is later verified. That in view of the above and the evidence produced in the proceedings at fs. 46 It does not appear that in this case the appellant has breached any obligation, since the industrial improvement has been verified, even if the incorporation into the work is for a purpose other than that declared in the dit. and beyond the circumstance that the tariff items of the certificates are different, since in all cases of the applications and sworn declarations involved, they were plates of the sizes indicated. Therefore, such conviction must also be voided, and in my opinion it does not correspond to the non-substantial figure contemplated in art. 972 In the meantime, as I said, in my opinion, there was no breach of the obligation assumed as a result of the granting of the temporary import regime, subject to industrial improvement. VII.- Regarding the lack of cancellation in time of the temporary import clearance No. 024-2/95 (v. fs. 249 of the administrative proceedings) it should be noted that the cancellation request was submitted on 23.12.98 (v. fs. 1 of the menc. summary), the total merchandise having been re-exported on 14.9.98 (v. the note cited. from fs. 1 and the pe No. 51573/6, fs. 70 / 78). That art. 10 of the aforementioned Res. 72/92 literally states: the beneficiary of the temporary import regime must present to the application authority, once the entire merchandise covered by each Temporary Import Dispatch (DIT) has been exported, the corresponding cancellation in the manner determined by said authority (emphasis added).
That point 8 Cancellation of Temporary Importation of the former Resolution “ANA No. 479/95 establishes the cancellation procedure and Annex I, point 8 of the former Resolution “ANA No. 1379/95 sets the period of stay as the deadline for doing so (see also point 2.1. of Annex IV D, referring to Control Provisions), therefore the customs office is correct in this regard in that the plaintiff has failed to comply with an obligation under its responsibility.
That, however, this obligation is merely formal and, obviously, does not affect the purpose that motivated the granting of the benefit.
VIII.- That, in this case, a fine of 10% of the customs value of the infringing merchandise must be applied in accordance with the terms of paragraph a) of article 972 of the CA.
That, taking into account the value of fs. 260 of the ant. adm., such sentence should be fixed at the sum of $4915,80, and it is not appropriate to issue a ruling in this regard regarding the grievance raised by the plaintiff regarding the additional right, since it has not been included in the calculation of the customs value of the merchandise that serves as support for the fine now proposed.
IX.- That it is not appropriate, given the manner in which the vote is taken, to issue a ruling on the remaining issues raised by the plaintiff.
X.- That it is not appropriate to bring a charge for taxes, given that the only sentence imposed in this case is for a formal violation and in accordance with the provisions of paragraph b) of section 1) of art. 274 of the CA, which excludes the presumption of importation for consumption of temporarily imported merchandise without having complied with the obligations imposed as a condition of the regime, when such non-compliance is of merely formal obligations, as occurred in this case.
That, for the reasons stated above, no additional rights are required.
XI.- Therefore I vote for:
1°) Partially modify Resolution No. 168/01 of the San Nicolás customs office in the following terms and repeal Resolution No. 251/01.
2°) To set aside the sentence of $53.078,57, imposed in accordance with the terms of art. 970 of the CA in art. 1° of the resolution mentioned first in the previous point and the sentence of $9,15 contained in art. 2° in relation to the losses.
3°) To revoke the tax and additional requirement of article 3 of the aforementioned resolution.
4°) Impose a single fine of four thousand nine hundred and fifteen pesos and eighty cents ($4915,80), for the formal non-compliance of not having temporarily cancelled the temporary import clearance No. 024-2/95, in accordance with the terms of subsection a) of section 1 of article 972 of the CA.
5°) The costs are imposed, according to the mutual due dates.
Dr. Catalina García Vizcaíno said:
I substantially agree with the preceding vote.
Pursuant to the above vote, it is unanimously RESOLVED:
1°) Partially modify Resolution No. 168/01 of the San Nicolás customs office in the following terms and repeal Resolution No. 251/01.
2°) To set aside the sentence of $53.078,57, imposed in accordance with the terms of art. 970 of the CA in art. 1° of the resolution mentioned first in the previous point and the sentence of $9,15 contained in art. 2° in relation to the losses.
3°) To revoke the tax and additional requirement of article 3 of the aforementioned resolution.
4°) Impose a single fine of four thousand nine hundred and fifteen pesos and eighty cents ($4915,80), for the formal non-compliance of not having temporarily cancelled the temporary import clearance No. 024-2/95, in accordance with the terms of subsection a) of section 1 of article 972 of the CA.
5°) The costs shall be imposed, according to the mutual due dates. Register, notify, promptly return the administrative records and file them.
This document is signed by Dr. Winkler and Dr. García Vizcaíno because Dr. Krause Murguiondo is excused (art. 1162 of the CA)
